Death Penalty Challenges

The death penalty is the ultimate punishment for crime in America. Execution has been a favored method of dealing with murderers, rapists, and thieves since the dawn of civilization. When colonists came to the New World, they found the indigenous peoples already practicing executions in their cities.


However, activists have been challenging death penalty laws for almost as long. Italian penal reformer Cesare Beccaria questioned the morality of state executions in the 18th century. Thomas Jefferson attempted a limitation of capital punishment in 1785 but did not succeed.

Not until the mid-1950s did the U.S. Supreme Court begin revising and refining the death penalty system. During the 60s and 70s, the laws underwent a series of changes as more states altered their views on the use of the death penalty and the state of human rights.

This article reviews the significant death penalty challenges in the United States and some critical court decisions affecting the criminal justice system.

The Standard of Decency

In 1958, the Supreme Court decided in Trop v. Dulles that the Eighth Amendment contained an evolving standard of decency that marked the progress of a maturing society. This is related to the "cruel and unusual punishment" aspect of the Eighth Amendment. Things that were acceptable as punishment in the late 1700s were no longer acceptable in the 1950's.

Although Trop wasn't a death penalty case, abolitionists applied the Court's logic to executions. They maintained that the United States has indeed progressed to the point that its standard of decency should no longer tolerate the death penalty.

Death Penalty Challenges in the 20th Century

As the 20th century progressed, the question of what is acceptable for capital punishment continued to evolve. Activists and advocates became more concerned about wrongful convictions and the risk to innocent people caught in the justice system's wheels. The two decades after Trop v. Dulles saw a number of cases about the nature of due process and the administration of the death penalty in America.

Due Process: Evidence

In 1963, John Brady and Charles Boblit murdered an acquaintance. The court convicted both men and sentenced them to death. On appeal, Brady learned that Boblit, in a separate trial, had confessed to committing the murder alone. This evidence was not given to Brady's attorney. Based on this evidence, Brady received a new sentencing hearing and a life sentence. Brady v. Maryland, 373 U.S. 83 (1963)

This case established that prosecutors must give defendants all exculpatory evidence before trial.

In 2006, the Supreme Court reversed and remanded a jury's death penalty verdict in Holmes v. South Carolina 547 U.S. 319 (2006). The court had prevented the defendant from presenting his case that another person had committed the crime because it felt the prosecution's forensic evidence was too strong to overcome.

The Court ruled that no matter how compelling the court felt the prosecution's evidence was, the defendant had an absolute right to present a complete defense.

Due Process: Juries

In Witherspoon v. Illinois 391 U.S. 510 (1968), the Court ruled that prosecutors could not exclude jurors from a death penalty case solely because they had reservations about the death penalty. In Witherspoon, the prosecutor excluded all jurors who expressed even a modicum of doubt about capital punishment, leaving the defendant with a jury biased in favor of the death penalty.

The Court ruled this violated the defendant's right to a fair and impartial jury. Following this ruling, states had to rewrite jury questions. Prosecutors could ask jurors if they could consider the death penalty and exclude only those who were unable ever to consider applying capital punishment.

In 1980, jury instructions changed again following Beck v. Alabama 447 U.S. 625 (1980). Before this case, Alabama judges could only instruct juries in death penalty cases that they must either find the defendant guilty of the capital offense and sentence them to death or acquit them. Jurors could not find defendants guilty of any lesser included offenses.

The defendant in Beck had been involved in a robbery in which someone died. The defendant admitted guilt in the robbery but denied the homicide. The Court's ruling was succinct: "The death sentence may not constitutionally be imposed after a jury verdict of guilt of a capital offense where the jury was not permitted to consider a verdict of guilt of a lesser included offense." (Beck at 633)

Disparities in Capital Sentencing

The most important death penalty case of the 20th Century was Furman v. Georgia 408 U.S. 238 (1972). The defendant, William Furman, received the death penalty after killing someone in a botched burglary. The Court heard the case with Jackson v. Georgia and Branch v. Texas, all of which involved questions about the application of the death penalty.

The Justices ruled 5-4, but there was no majority or even plurality on the reason for the ruling. Instead, the Justices held broadly that the death penalty as it currently existed nationwide was unconstitutional for all capital cases and pointed to:

  • Arbitrariness in handing out the penalty for crimes ranging from homicide and rape to burglary and aggravated assault
  • Disparity and racial bias in sentencing, with a much higher percentage of Black defendants receiving the punishment
  • The inherent cruelty of execution itself, which was not consistent with a just and moral society

Following the Furman decision, a moratorium on executions remained in effect until 1976, with the case of Gregg v. Georgia.

Methods of Execution

As of 2023, 21 states, the Federal government, and the U.S. military still have the death penalty on the books. Six states (Oregon, California, Arizona, Tennessee, Ohio, and Pennsylvania) have paused their executions by executive order but have not removed capital punishment by statute. The remaining states have abolished the death penalty.

One reason for the continuing outcry against the death penalty has been the methods of execution. The primary methods used in the U.S. were hanging or a firing squad until the adoption of the electric chair in 1897. The gas chamber followed in 1922. No new methods of execution came about until lethal injection in 1977.

All types of execution have their flaws. According to the Death Penalty Information Center, the only 100% reliable method is the firing squad, with zero botched executions since 1890. A "botched" execution is one which involves unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner.

Despite being touted as the most humane form of execution, lethal injection has the highest percentage of botched executions, with over 7% of attempts failing or requiring multiple attempts to locate viable veins in inmates who are old, ill, or have blood vessels ruined from years of IV drug abuse.

All other methods of execution were long since declared constitutional. The Supreme Court ruled lethal injection constitutional in 2006 (Baze v. Rees, 553 U.S. 35).

Lethal Injection Drugs

Lethal injection's adherents sold it as a more humane approach to executions. The method involves administering three drugs in sequence: a barbiturate that renders the prisoner unconscious, a paralytic that impedes breathing, and potassium chloride or a similar agent to stop the heart.

Activists have challenged all these drugs since lethal injection's first use in execution. Pressure from anti-death-penalty activists has caused some manufacturers to stop making the drugs or to stop shipping them to America. Negative attention, especially in Europe, which does not have the death penalty, has resulted in bans on precursor chemicals as well.

Much of the controversy has stemmed from the type of sedative in use. Activists claimed prisoners were still able to feel pain, a fact confirmed by some of the inmates who survived botched executions. Other problems with lethal injection have involved the execution team's inability to locate suitable veins, taking up to two hours to locate usable blood vessels in some cases, and inmate reaction to the drugs, which was never considered before the date of execution.

Death Penalty Returns to Court

In 1976, a Georgia court convicted Troy Gregg of murder and sentenced him to death. Despite the moratorium, both the trial and appellate court upheld the death sentence. The Supreme Court took the case. Gregg's was the first death sentence ever upheld by the Supreme Court.

This time, the Court reasoned that the death penalty was not itself unconstitutional. Capital punishment was not cruel and unusual when carried out under sentencing guidelines written to prevent capriciousness and prejudice in administering the penalty.

Justices William J. Brennan and Thurgood Marshall dissented, believing capital punishment violated the Eighth Amendment. Nevertheless, the moratorium on capital punishment ended with the Gregg case.

Mitigating Factors

Death row appeals continue to wind out of prisons and into the Supreme Court's docket. Many of these come from inmates who believe that juries should have given mitigating factors in their cases more weight.

Intellectual Disabilities

In 1996, Darryl Atkins and a cohort abducted and killed a victim after forcing him to take money out of an ATM. At trial, Atkins's co-defendant was the more articulate of the two and able to shift most of the blame to Atkins. During the penalty phase, dueling experts testified about Atkins' intellectual ability, with one claiming he had an I.Q. of 59 and the other finding him of average intelligence.

In Atkins v. Virginia, 536 U.S. 304 (2002), the Court ruled that exempting those with intellectual disabilities from execution would not affect any deterrent effect the death penalty might have on those with average capacity. At the same time, people with mental disabilities were at greater risk for wrongful execution because they may lack the ability to conform their conduct to social norms.

At the same time, however, the Supreme Court recognized that each state can determine who has an intellectual disability and what constitutes such a disability. As a result of the court's ruling in the Atkins case, state law remains the dictating factor in determining grounds for execution.


America has long split over whether juveniles should be tried as adults, especially when they commit heinous or violent crimes. However, the question of whether juveniles should receive the death penalty has been contentious for decades. New research on brain development suggests that the human brain does not reach full growth until the mid-20s, and the adolescent mind does not have the emotional or logical ability to appreciate the consequences of its actions.

That is difficult for juries to understand in cases like Roper v. Simmons 543 U.S. 551 (2005). In 1993, Simmons, then 17, and a 15-year-old friend kidnapped and murdered a woman in Missouri. The homicide was unusually cruel: the victim was bound with duct tape and thrown from a bridge. Simmons masterminded the murder and bragged about it afterward. He told his accomplice they would get away with it because they were minors.

Looking beyond the facts in the instant case, the Court held that extending the death penalty to defendants who were minors when they committed the crime was cruel and unusual punishment as defined by the Eighth Amendment. The Court acknowledged that juveniles have a diminished culpability for their actions. Any sentence imposed must consider rehabilitation before retribution.

The Death Penalty Today

As of 2023, there are 21 death penalty states. The attorney general stayed the federal death penalty. Florida recently passed a law allowing juries to decide death penalty cases with fewer than 12 votes. On the plus side, some dozen states are considering bills or constitutional amendments that would abolish the death penalty.

It is doubtful the debate over the death penalty, or challenges to the practice, will end anytime soon.

Get Professional Legal Help With Your Criminal Case

Although almost half of U.S. states have abolished or suspended the death penalty, death penalty statutes remain on the books. The good news is the definition of capital offenses has narrowed to a handful of serious felonies.

If you're facing criminal charges in a death penalty jurisdiction, you need legal advice from a criminal defense attorney. State courts can make their own definitions and rules, and you need a lawyer who knows those laws.

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